Parker v Moore[2006] QSC 415

SUPREME COURT OF QUEENSLAND

1. On or about Sunday, 6 September 1998 the plaintiff sustained injuries when she fell from a balustrade into a stairwell at the home which she and her partner were renting. She claims damages in respect of those injuries on the grounds that the fall was caused by the negligence and/or breach of contract and duty of the defendants, the owners of the house. The defendants deny that there was any negligence or breach of duty on their part.

Background facts

2. The house in question is mainly of timber construction. It was erected some time prior to 1943 because it is depicted in an aerial photograph taken in that year.^[1]  No doubt it had undergone repairs and alterations in the intervening period.  Some evidence of this is the fact that louvre windows had been installed in the upper verandah area whilst sash type windows are found in other parts.

3. The defendants were the registered owners of the house which they purchased in the late 1980s or early 1990s. They had lived in the house “only for a week here and there”.^[2]  But they visited regularly during a 6-8 month period that their son lived there.  The defendants continue to use the shed on the property for storage. 

4. The plaintiff and her partner became tenants of the residence on 3 February 1995 and lived there continuously until some months after the incident. They had successive tenancies thereafter each of one year’s duration,^[3]  ending on 6 August 1998.^[4]  It seems that the plaintiff was holding over at the time of the incident. Throughout this time the property was managed by A & A Realty, the principal of which firm was Mr Pagano.  He made periodic inspections of the property and furnished reports of those inspections to the defendants.  The contents of the reports suggest that his inspections were rather of a cursory nature.  The dwelling was old and as far as one can gauge from the photographs showed general lack of maintenance. 

5. At the relevant date the house appeared to be, generally speaking, in a poor state of repair. Window sills and walls in the upper level were affected by rot. One consequence of this was that a set of louvres fell out and there was concerns that more would do so. There had been earlier problems with the dwelling and some difficulty having repairs effected. At the time of this incident the plaintiff was concerned to expose all of the rot affected areas for the more complete inspection by the property manager who was expected on the following Monday morning. For this purpose she wished to remove a curtain and to do this decided to stand upon the balustrade above the stairwell both of which are depicted in photos – exhibits 2A and 2B.

6. In the evidence, reference is sometimes made to a “railing”, “rail” or “bannister” all of which appear to be used interchangeably for the term ‘balustrade’ which I will continue to use.

7. As to how the plaintiff came to fall, it is necessary to consider two factors – her own movement and the condition of the balustrade on which she was intending to stand.

8. There is some inconsistency between her evidence describing the event and what she had written in earlier statements. There is also a further version which Mr Pagano said she gave to him involving the use of a plank between the balustrade and the window sill. There is a greater likelihood of Mr Pagano misunderstanding her description than of the plaintiff actually giving this version. Consequently I do not accept Mr Pagano’s recollection as accurate.

9. The plaintiff’s evidence before me suggests that she stood on a plank-like piece of wood which was normally used as a bench for pot plants. This plank is clearly depicted in exhibit 2A. After removing the plant she initially stood on that plank. But needing more height she put her left foot on the balustrade and her left hand on the louvre frame and lifted herself up intending to take hold of the curtain with her right hand.^[5]  In the course of doing that she fell forward over the balustrade.  She cannot state with accuracy the position of her right foot when she commenced to fall but seems now to think that it was somewhere between the plank and the balustrade.^[6]

10. The plaintiff committed herself to describe the incident in writing on two unidentified earlier occasions. These have now been tendered as exhibits 6 and 7. In exhibit 6 she wrote:-

“I was standing on the post and rail trying to undo the rope of the curtains that were hanging up there.  I wanted to see how bad it really was and to show the real estate to have it repaired.  Nothing has still been done even though Mr Pagano has been out and taken photos and took down the curtain.  I lost balance and fell down onto the stairs …”

In exhibit 7 she wrote:-

“I was climbing onto the end rail of the bannister.  I was stood on two tea chests with a piece of timber on top used as a plant stand.  I had moved the plants over.  I put my left hand on the wooden part and my right foot on the rail.  I then put my left foot on the rail and my right hand on the post at the same time.  The rail started wobble, then before I knew it I was heading for the stairs below.  It happened very fast, no time to think.”

11. The internal conflicts as to whether the plaintiff had both feet on the rail or only one cannot be resolved rationally. The truth of the matter is that the incident happened so fast that the plaintiff herself cannot say for sure. In any event, I am left with the impression that the fall occurred as part of her motion in gaining more height by standing on the balustrade rather than her losing balance after she had been stationary with both feet on it.

12. The plaintiff described her mood at the time in the following terms:-

“I wasn’t really thinking clearly at all.  I was irate, at the end of my tether, from complaining repeatedly and getting nothing done.”^[7]

13. I turn then to the evidence concerning the stability of the balustrade. As seen from exhibit 7 the plaintiff contends that the rail “wobbled” a feature which she did not refer to in exhibit 6. In her evidence she described the event in these terms:-

“I stood up onto the boxes there in the corner and I put my arm there…and my foot on there…I mean, my left arm up that way…and I put me foot up on the balustrade and I reached with me right hand for the curtain.  As I did that, it started to move and then down I went.  I just had – just went.”^[8]

When cross-examined about the movement of the balustrade the plaintiff insisted that it did move.^[9]

14. She had not previously noticed that the balustrade had wobbled nor had she been made aware of that fact by anyone else. There is no evidence of anyone purposely inspecting the balustrade or testing its stability prior to the incident. There is no evidence that anyone had any difficulty in using the balustrade in its intended purpose as a barrier to the void of the stairwell.

15. Since the accident the balustrade has been examined by Mr Maddocks, a consulting engineer, who has furnished two reports. He made a site inspection which I assume took place shortly before his report dated 6 December 1998. The balustrade was inspected also by Mr Phelan, loss assessor in the beginning or middle or August 1999. At the time of his inspection, Mr Phelan’s understanding was that the plaintiff had fallen from a plank placed across the stairwell.

16. Mr Maddocks found that –

“2. There is approximately 20mm movement in the balustrade from which the fall occurred, under a force imposed by a single hand pushing on the top of the structure.”^[10]

He attributed this movement to the fact that “the timber posts supporting the balustrades have been cut around the joist with nails provided through the cut section of the post to the supporting joist.”  He opined “that the post closest to the external wall is not capable of supporting the required lateral load applied to the top of the rail.  Application of the required load would cause nails in the face of the cut-down post to shear and the post to rotate.^[11]  Movement in this post was observed at the time of the site visit.” Mr Maddox expressed the opinion that the amount of movement he detected was a result of the components becoming worn, nails corroding or becoming loose and “over time the rotation has just grown just through use over the intervening 60 years”.^[12]  The amount of movement was indicated that the lateral load bearing capacity of the structure was well below the standards laid down in present day codes.^[13]

17. Mr Phelan, on his site inspection, made measurements and took photos. When asked about movement in the balustrade his evidence was as follows:-

“Now, what did you do to attempt to generate movement in that post? – Oh, I moved it right to left, up and down, and the only way that it moved was towards the top of the stairway, which is at the opposite end to where that post is and it moved approximately 1 cm.

Now, to make it perfectly clear, are you talking about movement in the post---?  -- Yes.

---from left to right? – No.

---or are you talking about back and forward movement? – Back and forward.

And which way did it move? – Towards the opening of the stairway which is to the – the centre of the photograph.

And what was the extent of that movement? – About one centimetre.”^[14]

18. For the reasons I am about to express the outcome of the plaintiff’s claim does not depend particularly on the extent of lateral movement in the balustrade. Were it otherwise, I should indicate that I would accept the evidence of Mr Maddocks in preference to that of Mr Phelan, because his inspection as undertaken on a correct understanding of what happened and was therefore more focussed on the movement and causes of movement in the post.

19. But in the end result the movement of the balustrade generated by direct lateral force does not necessarily give an indication of whether there was any, and if so how much, movement by the force exerted by the plaintiff when stepping onto the balustrade. Any minor movements in the balustrade has to be considered against the overall activity and forces of the movement of the plaintiff’s body attempting to gain a position which presented of such obvious difficulty in maintaining balance.

Plaintiff’s claim

20. The plaintiff alleges that the defendants were negligent in –

1. failing to maintain the premises in a safe and habitable condition

2. failing to ensure that the premises at the commencement of the tenancy were in a reasonable state of repair

3. failing to maintain the premises in a reasonable state of repair

The plaintiff in alleging breach of contract and duty relies on the provisions of the Residential Tenancies Act 1994 to which reference will be made.

21. The Amended Defence asserts that the premises were safe and in particular that the bannister was securely anchored to the floor. They allege that the plaintiff caused or contributed to her own injuries by failing to use a ladder or other safe means of gaining access to the curtains. They allege also failure on her part to care for the premises as required by s 106 of the Residential Tenancies Act and to advise the defendants of any defect in the bannister.  The defence raised an issue about whether the premises were residential but that point was not pursued at trial.  It seems to me they clearly were residential premises.

Legal principles

22. Apart from the duties arising at common law, the owner of premises which are to be let out for residential purposes have a statutory obligation arising from the provisions of s 103 of the Residential Tenancies Act 1994.  Relevantly, the section provided:-

“103.  Lessor’s obligations generally

…

(2) At the start of the tenancy, the lessor must ensure –

1. the premises and inclusions are clean; and

2. the premises are fit for the tenant to live in; and

3. the premises and inclusions are in good repair

4. the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises.

(3) While the tenancy continues, the lessor –

1. must maintain the premises in a way that the premises remain fit for the tenant to live in; and

2. must maintain the premises and inclusions in good repair; and

3. must ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with; and…”^[15]

23. The distinction between the standards of the lessor’s obligation, firstly at the commencement of the lease where the lessor “must ensure” and then the continuing obligation where the lessor “must maintain” was discussed in the High Court of Northern Sandblasting Pty Ltd v Harris^[16] and by the Court of Appeal in Gration v C Gillan Investments Pty Ltd.^[17]  Here that distinction is somewhat blurred because the plaintiff had been in continuous occupation of the premises for three and a half years before the incident.  The last occasion for the commencement of the tenancy was 7 August 1997.  There was not any specific inspection by the lessor’s agent immediately prior to that day but there was between then and the date of the incident.  These inspections occurred on 22 October 1997 and 30 June 1998.^[18]  That being the case, it seems to me, any statutory obligation would only arise pursuant to subsection (3) above.  It is well established that the statute creates contractual duties but these do not result in the imposition of an absolute liability: Northern Sandblasting per Gummow J at p 385, per Kirby J at pp 414-6; Gration per Muir J at [55]-[57].

24. Consideration of the landlord’s duty to a tenant at common law was discussed by the High Court in Jones v Bartlett.^[19]  In the judgment of Gummow and Hayne JJ, the following passage appears:-

“166. The result is that in Australia it is no longer correct that a landlord never owes any duty in negligence to occupants in respect of the condition of residential premises.  The rejection of the rule in Cavalier v Pope does not, however, go so far as necessarily to impose a duty upon the landlord to any person who may be on the premises at any given time.  In Northern Sandblasting, the existence of some duty to the child of the tenants was assumed by the concession of the landlord…In our view, this concession was properly made, but to find the content of the duty in the particular case requires consideration of the wider question left unanswered in Northern Sandblasting.

…

171. …The relationship between landlord and tenant is so close and direct that the landlord is obliged to take reasonable care that the tenant not suffer injury.  In considering the degree of care which must be taken, and the means by which a tenant may be injured, it must be borne in mind, as already discussed, that ordinarily the landlord will surrender occupation of the premises to the tenant.  Thus, the content of any duty is likely to be less than that owed by an owner occupier who retains the ability to direct what is done upon, with and to the premises.  Broadly, the content of the landlord’s duty to the tenant will conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence.

172. This does not exceed the content of statutory requirements in various Australian jurisdictions, many of which were enacted to overcome the perceived deficiencies of the rule in Cavalier v Pope…

173. Premises will not be reasonably fit for the purposes for which they are let where the ordinary use of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury.  The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put.  The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe.  This does not amount to a proposition that the ordinary use of the premises for the purpose for which they are let must not cause injury; it is that the landlord has acted in a manner reasonably to remove the risks.”

25. All of these statements of obligation, fitness for purpose and identification of risk are predicated upon the event which gave rise to the injury being part of “the ordinary use of the premises for the [intended] purpose” as appears in paragraph [173] above. This point was made also in Gray v Queensland Housing Commission^[20] where Chesterman J said:-

“[22] From these slightly differing expressions of the duty imposed by the general law upon a landlord I take that duty to be that a landlord must exercise reasonable care not to let premises containing a defect in features or fittings which is of such a nature that it is likely to cause injury in the ordinary occupation of the premises.  The duty extends only to the repair or removal of defects of which the landlord knows or which are obvious on an inspection of the premises.  This, at least in the view of Gummow and Hayne JJ, is the extent of the obligation imposed by s 103 of that Act to ensure that premises are reasonably fit for habitation.  The duty is thus concerned with the repair or removal of defects which a landlord might reasonably foresee would cause injury during the ordinary course of occupation by the tenant.”

Application of principles

26. In the circumstances of this case neither the plaintiff nor the defendants nor the defendants’ agent was aware of any defect in the balustrade. It was not a defect likely to be discovered by ordinary inspection. Unlike the situation in Gration where there was no similar problem the identification of which would have given rise to constructive notice that the presence of a defect was likely.  As a consequence, I am not persuaded that the defendants ought to have known that the premises were unsafe for the use which they would ordinarily be put nor did the defendants fail to take any reasonable steps to ascertain the existence of such defects or fail reasonably to remove the risk.

27. In my view the plaintiff has been the author of her own misfortune in adopting an obviously dangerous method of undertaking a simple task. No landlord could be expected to foresee, or to guard against, such conduct. The plaintiff’s claim therefore fails.

28. Notwithstanding my finding about the outcome of the case I will turn briefly to the assessment of damages.

Damages

29. As a result of her fall the plaintiff sustained the following injuries:-

1. Crush fracture to T9 and T12 vertebrae

2. Soft tissue injury to the lower thoracic lumbar spine

3. Bruising and scarring to the left anterior shoulder

4. Bruising to the left anterior foot

5. Lacerated right and left legs

6. Tenderness and bruising over the right buttock

7. Laceration to the right front head

8. Muscular and soft tissue damage

30. The plaintiff was treated initially at the Innisfail Hospital where she was an inpatient for five days. On 15 September 1998 she consulted a general practitioner, Dr Di Palma. She was prescribed rest, anti-inflammatory and painkilling tablets and physiotherapy. She was referred to Dr Sheppard, orthopaedic surgeon, on 19 February 1999. He found that her fractures had united but that she was left with residual stiffness and muscle weakness. He expressed the opinion that she may have a little stiffness in her lower thoracic spine in the long term but her level of function will return to being quite good over the ensuing 12 months. Dr Di Palma expressed a similar optimistic prognosis later that year.

31. The plaintiff was born on 20 November 1962 and was thus almost 36 years old at the time of the incident. She is now 44 years. Prior to the fall she described herself as being an active woman, living happily with her de facto partner and their two children. She worked in the banana industry and was able to undertake a wide range of physically demanding activities. Now she claims to be quite disabled but she cannot sit or stand for long periods, she is constantly in pain and dependent on a variety of medications. She is unable to work and unable to do many of the household chores.

32. The optimistic prognoses expressed by Dr Lewis and Dr Di Palma did not come to pass. She has been examined by a variety of consultants, each of whom have furnished reports. Dr Bruce Low, orthopaedic surgeon, related her continuing chronic pain to secondary degenerative changes at the crush fracture sites. But X-rays have also showed degenerative changes at other levels which do not appear to have been injured at the fall. Dr Thomas, orthopaedic surgeon, opined that in addition to the crush fractures she sustained other soft tissue damage. However, he regarded any exacerbation of pre-existing degenerative changes would have resolved by this time and her present problems he attributes to naturally occurring processes. In March 2002 and again in October 2002 the plaintiff was assessed by Dr Ballenden, medical advisor to Health Services Australia, about her capacity to work. This was in the context of determining whether she was entitled to remain in receipt of a disability pension. He expressed the view that she was able to work although she would need work training for light duties over a period of time. In October he assessed her as having some limitations of movement but still being fit for fulltime work in a sedentary category. He found that she was also suffering from depression.

33. Dr Watson, rehabilitation specialist, saw the plaintiff for the first time on 22 July 2002 and on a number of occasions thereafter. Distilling the findings of his four reports shows him to be of the opinion that the plaintiff is not now, and in the period since the fall, has not been commercially employable, mainly because of her experience of chronic pain. Dr Walkley also found the plaintiff to be suffering from depression and plagued by thoughts of worthlessness, hopelessness and personal failure. He said she demonstrated a high degree of concern about physical functioning and health matters and generally negative self evaluation and loss of self esteem. He regarded her vocational prospects as nil, even with a treatment regime towards providing her with better pain management. He diagnosed her suffering from an Adjustment Disorder with Depressed Mood which he related to her fall. The defendants also identified that the plaintiff was suffering from other health problems unrelated to the fall. In particular, they refer to her ongoing treatment for stomach problems. The extent to which these conditions might have impacted on the plaintiff’s ability to function in the workplace is difficult to gauge.

34. Weighing all these matters up I am satisfied that the consequences of the plaintiff’s fall extended beyond what was anticipated by Drs Sheppard and De Palma in the early phase of treatment. I am satisfied that the soft tissue injuries have given rise to the experience of chronic pain which coupled with the psychological disturbance described by Mr Walkley has become difficult to manage. At the same time the plaintiff does not appear to have undergone any treatment which may have lessened the effects of her pain. Consequently, I am not satisfied that her present complaints represent her true long term level of functioning. I am satisfied that the plaintiff is incapacitated for work of a physical kind that she did before the fall but I am not satisfied that she has completely lost the capacity to earn some income in a suitably light part-time work situation.

35. The plaintiff’s pre-injury work history was as a casual farm labourer. She worked on average 24 hours per week. She had also gained a horticultural certificate from T.A.F.E. Her claim for past loss of income is based on a projection of this practice continuing to the present time and using award rates results in a claim for $98,358.00. The difficulty is that her documented earnings for the years immediately preceding the incident do not reflect earning capacity at the claimed for levels. For example her income in year ending June 1993 was $13,458 from Department of Social Security part of which may have been a Newstart allowance. In year ending June 1994, the net income was approximately $4,000 and that for much of the balance period she was receiving Newstart allowance.^[21]  In this state of evidence there clearly has to be significant discounting of the amount claimed for both the past and future periods.

36. I am satisfied also that the plaintiff’s ordinary life’s activities in carrying out household duties and engaging in recreation have been limited by chronic pain. I expect that the effects of this can be ameliorated to some degree by her undertaking pain management techniques but that nonetheless she will continue to be plagued by these consequences of her fall. I do not accept that the compensable limits of her need for care both past and future are at the levels claimed. She had other health issues which contributed to her needs. Whilst the plaintiff is not engaged in employment many of the domestic demands can be met over time. I propose, in the circumstances, to make global assessments for these particular allowances.

37. A challenge was made also to a number of items of special damages arising from the plaintiff’s consultations with Dr Di Palma. Some consultations were clearly for purposes unrelated to the incident but others were partly related. I propose making some small deduction by rounding off the amount claimed.

38. Ascribing allowances to the various bases upon which her claim has been placed, I would make the following assessments:-

39. I assess the quantum of damages at $276,297.95.

Orders

40. I make the following orders:

1. The plaintiff’s claim is dismissed

2. The plaintiff pay the defendants’ costs of and incidental to the claim to be assessed on a standard basis.